Standing Committee D

[Mr. George Stevenson in the Chair]

Employment Relations Bill

Ordered, 
That— 
 (1) during the remaining proceedings on the Employment Relations Bill the Standing Committee do meet— 
 (a) at half-past Nine o'clock on Tuesday 10th February 2004; 
 (b) at half-past Nine o'clock and half-past Two o'clock on Tuesday 24th February 2004, Thursday 26th February 2004 and Tuesday 2nd March 2004; 
 (2) the proceedings to be taken on the sittings shall be as shown in the second column of the Table below and shall be taken in the order so shown; 
 (3) the proceedings which under paragraph (2) are to be taken on any sitting shall (so far as not previously concluded) be brought to a conclusion at the time indicated in the Table; 
 (4) paragraph (2) does not prevent proceedings being taken (in the order shown in the second column of the Table) at any earlier sitting than that provided for under paragraph (2) if previous proceedings have already been concluded. 
 TABLE SittingProceedingsTime for conclusion of proceedings 5thClauses 27 to 3011.25 am 6thClauses 31 to 42- 7thClauses 31 to 42- 8thClauses 31 to 4211.25 am 9thNew Clauses, New Schedules, Clauses 43 to 45, Schedules 1 and 2, remaining proceedings on the Bill- 10thNew Clauses, New Schedules, Clauses 43 to 45, Schedules 1 and 2, remaining proceedings on the Bill- 11thNew Clauses, New Schedules, Clauses 43 to 45, Schedules 1 and 2, remaining proceedings on the Bill6.55 pm 
-[Mr. Sutcliffe.]

Gerry Sutcliffe: On a point of order, Mr. Stevenson. I have tabled a new clause to the Bill concerning the union modernisation fund. For the convenience of the Committee, I have put the statement on that matter on the Table, so that we can discuss it when we come to the new clause in due course.

George Stevenson: That is helpful information, but it is not my intention to allow any debate on that new clause now. We look forward to that new clause as and when it reaches the Committee.Clause 27 Role of companion at disciplinary or grievance hearing

Clause 27 - Role of companion at disciplinary or grievance hearing

Henry Bellingham: I beg to move amendment No. 51, in
clause 27, page 25, line 10, after 'companion', insert
', at the worker's request,'.

George Stevenson: With this it will be convenient to discuss the following amendments:
 No. 52, in 
clause 27, page 25, leave out lines 14 and 15. 
No. 53, in 
clause 27, page 25, line 24, at end add— 
 '(2D) Nothing in subsections (2A) to (2C) shall prevent the employer from questioning and receiving responses from the worker (whether or not the worker chooses to confer with his companion).'

Henry Bellingham: Good morning, Mr. Stevenson. The clause clarifies the role of a worker's companion at a tribunal, but there are some ambiguities that need to be cleared up. The clause could imply that once a worker has chosen his companion, that person is obliged to attend the hearing. In any event, the companion will be subject to new subsection (2C)(b), under which he cannot address the hearing if the employee makes it clear that he does not wish the companion to do so.
 Section 10(3) of the Employment Relations Act 1999 sets out fairly clearly the specifications as to who may act as a companion but nothing in the clause prevents an employee using that right to oblige another employee to attend the hearing. Although it is unlikely that many cases would arise in which an employee compelled a colleague to accompany him to a tribunal—perhaps to pursue another agenda—rights must be accompanied by responsibilities, and there must be certain safeguards to prevent any abuse of procedures that are designed to protect employees. That is the background to amendment No. 51. 
 I am sure that the Minister will be sympathetic to the amendment because we have tried hard to be as constructive and sensible as possible in tabling it. It would make a fairly simple change. New subsection (2A) states that the employer must permit the worker 
''to be accompanied . . . by one companion who— 
 (a) is chosen by the worker; and 
 (b) is within subsection (3)''. 
The amendment would ensure that the worker requested that the companion addressed the hearing. I would have thought that that was fairly straightforward. 
 Amendment No. 52 would leave out lines 14 and 15 on page 25. New subsection (2B) states that 
 ''The employer must permit the worker's companion to— 
 (a) address the hearing in order to do any or all of the following— 
 (i) put the worker's case; 
 (ii) sum up that case; 
 (iii) respond on the worker's behalf to any view expressed at the hearing''.
The provision to allow the companion to respond on the worker's behalf is inconsistent with new subsection (2C), which states: 
 ''Subsection (2B) does not require the employer to permit the worker's companion to— 
 (a) answer questions on behalf of the worker''. 
I would be grateful if the Minister clarified under what conditions the companion might respond to views expressed while refraining from answering questions.

Gerry Sutcliffe: May I be clear what the hon. Gentleman is asking? Is he asking about the companion and not the employee answering the questions? I want to be sure that I have got that right, and then I will provide clarity.

Henry Bellingham: I just want to clarify the conditions in which the companion might respond to views expressed while refraining from answering questions. I am linking the two parts of the Bill as it stands. I hope that I have not puzzled the Minister's officials, as they are looking at me rather furtively.

Jonathan Djanogly: There is the added matter of when is a view a question, which could lead to confusion.

Henry Bellingham: Yes. May I move on to amendment No. 53? It adds new subsection (2D):
 ''Nothing in subsections (2A) to (2C) shall prevent the employer from questioning and receiving responses from the worker (whether or not the worker chooses to confer with his companion).''
 It reinforces the point that, if the employer decides not to permit the companion to answer on behalf of the worker, it does not prevent the employer from putting the same questions to the employee and receiving answers. Given that new subsection (2B)(b) permits the employee to confer with his companion, the amendment would not allow the employer to disregard the companion's testimony and interrogate the employee. Rather, it would put the emphasis on the employee answering questions directed at him after consultation with his companion. The amendment offers a degree of extra reinforcement and clarification. 
 The Minister and I have both met the Brethren, mainly from Stockport and the northern part of the country. We will discuss the new clause on religious beliefs at a later stage and I do not want to pre-empt that, but the Brethren whom I have spoken to are very good employers who believe passionately in their businesses and in creating wealth. However, they have strong views about the introduction of an interface in the relationship between employer and employee. They feel that there is a bond that should not be interfered with by any outside organisation. 
 I know that the Brethren have met the Minister, who has been generous with his time, and that they discussed clause 27 and the rights of companions at disciplinary or grievance hearings. They also met me, voicing similar views, and they are concerned that the clause would widen the rights of trade unions. 
 I do not know if the Minister has taken on board the Brethren's concerns or what his comments on those concerns are, but they are genuine and sincerely held. Will he put their concerns at rest? They may be only small in number but up and down the country they employ a substantial number of people in small and medium-sized enterprises. It is in our interest that their views are taken on board and properly considered. I hope that the Minister will accept some of the amendments and also comment on my final point.

Jonathan Djanogly: Clause 27 makes amendments to legislation relating to the right to be accompanied in disciplinary or grievance hearings. The original ACAS code of practice on disciplinary practice and procedures in employment provided for the right of the worker to be accompanied at disciplinary hearings. Failure to comply would be taken into account by an employment tribunal. The Employment Relations Act 1999 made that right a statutory duty on employers. For the umpteenth time, the provisions in the Bill are being ratcheted up in favour of the worker. Now there is a statutory right for the companion to speak at the start and sum up at the end, and to speak on the worker's behalf on any views expressed at the meeting. It seems that what began as a disciplinary hearing is rapidly turning into a mini-trial.
 The main area of conflict, other than the general points that I have just made, is that the companion can speak for the employee on any views expressed under new subsection (2B)(a)(iii), but not if the question is asked under new subsection (2C)(a). That is often debatable and could lead to confusion and a level of legality that is counterproductive. For that reason, I support the amendments in my name and that of my hon. Friend the Member for North-West Norfolk (Mr. Bellingham). 
 Amendment No. 51 makes it clear that the worker should stay in control of the process and that the union should not take it over on his behalf. Amendment No. 52 tries to address the conflict between a view and a query, by removing the companion's ability to respond on the worker's behalf to the views expressed. As my hon. Friend explained, amendment No. 53 claims that, as the clause stands, the employer's express right to ask the questions has been diluted. The amendment fortifies that right and makes it clear that, as it is a disciplinary process, the employer must have the right to ask questions, which must be answered by the worker, notwithstanding any rights that the companion may have.

Jim Sheridan: This part of the Bill is welcome, because it seeks to clarify the companion's role. However, ambiguity still surrounds that role, because he or she can still not answer specific questions on behalf of the employee. That is a waste of time for the employee, his or her companion and indeed the employer.
 I have anecdotal evidence of trying to represent an employee at such a hearing. The experience was somewhat frustrating, because every time the employee was asked a specific question, I on his behalf was unable to answer it and a number of adjournments 
 had to be called. That was a ridiculous situation, and not one that any decent, progressive employer would want. Therefore, the role of companion should be further clarified. Indeed, I ask the Government to give workers full rights to representation. 
 I have some concerns about new subsection (2C), as it is somewhat contradictory. It would help if the Minister could explain the rationale behind it, because I believe that it is superfluous and should be deleted.

Brian Cotter: I do not see anything negative in the clause—it makes a positive addition to the Bill. If this debate helps the Minister to clarify the issue of views as against questions, all well and good. I disagree with the hon. Member for Huntingdon (Mr. Djanogly) that the measure will be anything other than helpful in reaching a resolution. Perhaps the worker will feel that they are not on trial if they have support of that nature. It would be helpful to have clarification of those questions in the Minister's response.

George Stevenson: Before I call the Minister, I just point out to the Committee that the amendments are quite specific. I shall call the question on clause stand part later. I am sure that the Minister will understand that.

Gerry Sutcliffe: May I start by apologising for my discourtesy earlier in not welcoming you to the Chair, Mr. Stevenson, and wishing you good morning? I do that now.
 It has been helpful to hear the comments of all the hon. Members who have contributed to the debate. The views of the hon. Member for Huntingdon are, if nothing else, consistent, but I refer him to the Second Reading debate, when the hon. Member for Old Bexley and Sidcup (Derek Conway) expressed his view on the issue and welcomed what the Government are trying to achieve. The hon. Member for North-West Norfolk asked some specific questions. In the spirit of what you said, Mr. Stevenson, I shall try to deal with each of the amendments and explain the motivation for the clause. 
 Let me begin with the Brethren. I have met them on two occasions to discuss the issue. There is no attempt by the Government to change the fundamental relationship between the employer and the employee. In the spirit of the Bill, the clause is about making things better and more easily understandable. 
 The amendments concern the role that the companion plays at hearings. The underlying objective of clause 27 is to clarify the entitlement of companions to contribute to hearings and to ensure that they can play a more active role at such key meetings. That will benefit everyone. The worker will gain because companions may be better able to put the case. They are less emotionally involved than the worker. Many trade union officials say that companions may be more practised at expressing themselves clearly. They may bring to the hearing expertise drawn from similar experiences in other cases. As a result, the worker's case will be put more dispassionately and succinctly. 
 The employer stands to benefit as well. The main purpose of hearings is to find a practical resolution to a problem. Sometimes, those who are close to an issue cannot see all the solutions. Companions can help by suggesting alternatives drawn from other experiences. In other words, their general experience of problem solving can help both parties sort out their immediate difficulties. 
 I believe that the hon. Member for North-West Norfolk, who was charming, as usual, understands and sympathises with the approach. His amendments seek to probe the extent of the entitlement of companions to speak. He is concerned about excessively widening their role, thereby making matters worse. 
 Let me start with amendment No. 51, which would prevent the companion from speaking at hearings until he has been invited to do so by the worker. Companions would not be entitled to interject on their own initiative. On each occasion when they might wish to speak—there could be many such occasions in complicated cases—they would need to ensure that the worker first invited them to do so. That sounds rather clumsy and inflexible and might well delay the proceedings. 
 New subsection (2C) already achieves much the same effect but does so in a more user-friendly way. It ensures in paragraph (b) that the companion cannot address the hearing if the worker does not wish them to do so. That gives the worker the necessary authority to control the companion's contributions.

Anne Picking: Might not the worker feel intimidated about instigating interjections if there were not an automatic right for the companion to speak at any point, whereas, if there is an automatic right, they can sit back and feel relaxed about the fairness of the hearing?

Gerry Sutcliffe: My hon. Friend makes a good point. That is the basis for trying to improve the difficult circumstances, as far as the worker is concerned, of a disciplinary or other significant hearing.
 The worker has the necessary authority to control the contributions made by the companion. The worker may feel that the companion is talking too much or not making the correct points and can silence them if they so wish. 
 Amendment No. 52, which I hope is a probing amendment, would remove the entitlement from the companion to 
''respond on the worker's behalf to any view expressed at the hearing''.
 Our idea is to ensure that the companion can contribute throughout the hearing. We do not want to limit their contribution to an opening statement putting the worker's case, or to one summarising the case, which is what the amendment would do, because the companion may be able to make helpful contributions in-between, which may take the form of questioning the parties about their problem. The companion may thereby help to define the issue more clearly and comment on the arguments and supporting evidence that the employer or the worker put forward. 
 If done well, that should help to clarify the issue. Importantly, the companion may also wish to suggest solutions which neither party has yet uncovered, drawing on his or her wider experience. 
 We must, of course, guard against a garrulous companion dominating the hearing. We believe that there are controls on such behaviour and I direct the hon. Member for North-West Norfolk to new subsection 2C(c), which specifies that the companion is not entitled to address the hearing if such interventions prevent the employer or any witness from contributing to the hearing. 
 Amendment No. 53 deals with the direct dialogue between the employer and the worker at the disciplinary or grievance hearings where the right to be accompanied applies. The purpose of the amendment is to ensure that the companion has no entitlement to jump in and answer questions on behalf of the worker. There may be common ground between me and the hon. Gentleman on that. We agree that there should indeed be scope for direct dialogue between the two principal parties. The companion is not there to act as the only spokesperson for the worker. The worker, too, should contribute to the extent that he or she feels able to do so. Indeed, the companion may have insufficient information to answer questions put to the worker about, for example, the worker's experiences. It is the relationship between the worker and the employer which is at issue. Direct communication between those two parties is, therefore, usually necessary for them fully to understand the problems.

Jonathan Djanogly: If the worker refuses to answer questions and the employer is able, in effect, only to state views, is the employer allowed to draw inferences from that? Clearly, the Minister's intention is to ensure that there is dialogue and that the employer is able to ask questions. What happens if the employer does not ask questions?

Gerry Sutcliffe: The employer will draw conclusions from that and will decide what further steps to take. The worker will always have the right not to answer a question, but that may damage their case and the companion may have a view on that. We do not want to break the relationship, but we believe that the companion can bring active support to the whole process.

Jon Cruddas: On the same point, but from a slightly different angle, will new subsection (2C) in lines 17 and 18 allow the employer to refuse to permit the companion to answer questions on behalf of the worker?

Gerry Sutcliffe: No, the companion can answer questions on behalf of the worker and advise the worker. We want fairness in the direct relationship, so that the employer can see the eyes of the worker and how he or she feels about the issue before them. We are trying to protect the employer's ability to ask
 questions, but during the questioning the companion can use their outside experience to advise and to support the worker.

Jonathan Djanogly: The point to which the hon. Member for Dagenham (Jon Cruddas) referred is exactly what amendment No. 53 is getting at because there is ambiguity. My reading of new subsection (2C)(a), contrary to what the Minister said, is that the employer could indeed stop the worker's companion from answering questions on behalf of the worker. We may disagree on whether that is right, but that is how I read it.

Gerry Sutcliffe: I do not read it that way, but I shall take a look at the wording. I am trying to explain the principle and the spirit behind what we are trying to achieve. We may need to tidy up the wording on Report. I want to be clear that it is not about disturbing the relationship; it is about what the companion supporting the worker can and cannot do. The companion can be anyone of the worker's choosing—a colleague or a trade union official—to give the best chance of his or her case being put. The point was made on Second Reading that one may be an excellent worker at one's job, but be unable to put across a case. The intense nature of the hearing may affect the worker. We feel that it is appropriate to ensure that the role of the companion is made clear.

Anne Picking: Is it not the case that this is about balancing the process? It is normally stacked against the employee, because the employer has always had the support of a human resources or personnel department, with the relevant expertise, skills and training, to give them advice or to speak on their behalf. The employee, who does not have those skills, is totally on their own. I have a view that those employed in personnel departments should be there to represent all people in the work force, and not just be a management tool. However, that is what happens, so this provision is about stacking it right.

Gerry Sutcliffe: My hon. Friend is right. It is about getting the balance right in what is a difficult environment for both parties. The measure tries to give the worker the opportunity to maximise his or her position in that difficult hearing by taking a companion—whether a colleague, friend, or trade union official. It also aims to ensure that the employer has the right to ask questions of the worker. I hear what my hon. Friend the Member for Dagenham and the hon. Member for Huntingdon are saying. I believe that there is an issue in terms of the employer—if one reads the new subsection that way—being able to stop the companion from answering a question. However, the companion can express a view about the questions asked.
 I accept the spirit in which the hon. Member for North-West Norfolk introduced his amendments, but we do not think that they are necessary. There is clarity in what we are trying to achieve. I ask him to withdraw the amendment.

Henry Bellingham: I am grateful to the Minister for that explanation. Confusion is too strong a word, but there is obviously still a certain lack of clarity. To return to the key point, if the employer decides not to permit the companion to answer questions on behalf of the employee, it should not prevent the employer from putting the same questions to the employee. Perhaps we can come back to the matter at a later stage. As my hon. Friend the Member for Huntingdon and other hon. Members have indicated, there is a possible pitfall here. I accept the Minister's view that amendment No. 53 is not strictly necessary. However, it would not detract in any way from what the clause sets out to do, and we feel that it would benefit the worker ultimately, and make the process smoother and more workable.

Gerry Sutcliffe: The other point that I did not stress as well as I should have done is that amendment No. 53 puts pressure, unintentionally, on the worker to answer a question. I do not think that that is the intention of the hon. Gentleman, so on that point alone, amendment No. 53 is not viable.

Henry Bellingham: I am grateful to the Minister. Perhaps we can have a discussion about that before the Bill goes to Report. There is still, in my judgment, a need to look at the overall wording of the clause, if not to proceed with that particular amendment. In the spirit of what the Minister has said, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 27 ordered to stand part of the Bill.

Clause 28 - Extension of jurisdiction of employment appeal tribunal

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: Will the Minister explain why the clause is necessary? It extends the jurisdiction of the Employment Appeal Tribunal and any extension is of interest. As I have pointed out before, there has been a large increase in the activity of employment tribunals and indeed the Employment Appeal Tribunal. The Minister will accept that people are now more conversation culture oriented and more litigious. They are being encouraged by law firms up and down the country to exercise their rights at every possible turn. I would be grateful if the Minister gave the Committee some extra background. We have the explanatory notes issued by the Department, which are excellent, and we are grateful for them, but when it comes to clause 28 it would be useful for some extra information.

Gerry Sutcliffe: I am grateful for the way in which the hon. Gentleman has raised the issue. I do not entirely agree with his outlook on why people are going to tribunals. I am sure that he will acknowledge the work
 the Government are carrying out on the dispute resolution regulations and others to try to keep matters in the workplace and to ensure that disputes are resolved where they should be resolved—in the workplace.
 The clause provides for the right of appeal to the Employment Appeal Tribunal against employment tribunal decisions in respect of the right to be accompanied. It corrects an oversight in the Employment Relations Act 1999 by providing in law for such appeals to the EAT. The level of litigation on the right to be accompanied is low. However, it is fair to assume that some of the cases that have gone to employment tribunals could have raised issues on appeal. Under their individual rights, employees' have the right of appeal, and it is only proper that employment tribunal decisions on the right to be accompanied are accorded the same treatment. 
 All those who replied during consultation on the review of the 1999 Act were fully in support. Clause 28 also received endorsement on Second Reading, including from the Opposition. I am sure that Committee members will agree that it should stand part of the Bill. 
 Question put and agreed to. 
 Clause 28 ordered to stand part of the Bill.

Clause 29 - Ways in which provision conferring rights on individuals may be made

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: The clause is difficult to get one's grey matter around. It seems to make a technical amendment to section 23 of the 1999 Act. It gives the Secretary of State the power to confer employment rights contained in specified Acts and in subordinate legislation implementing EU legislation on individuals who do not have the rights. As section 23 stands, the order is allowed to achieve those results only by means of provisions that amend the legislation conferring the right, and not by means of a provision that states simply that the right applies to the individuals in question. That is why we have new subsections (5A) and (5B), under which an order will be able to extend employment rights either by the use of a free-standing provision or by amending the legislation conferring the right.
 I am concerned that over the past few months there has been a great deal of controversy over the gangmastering operations in this country, which are unregulated and operate outside the formal economy. I hope that that you are not going to rule me out of order, Mr. Stevenson.

George Stevenson: I am listening with great interest.

Henry Bellingham: It is relevant, Mr. Stevenson, because it is about conferring rights on individuals who do not have rights at the moment. That sector of the economy is currently completely unregulated. The
 employment agencies—which is what they are—are supplying labour to businesses and industries that at any one time may need them on a temporary basis, or even in some cases on a long-term basis. If one considers East Anglia, in the summer there is a tremendous demand among farmers for pickers of hard and soft fruit. There is a demand in the food processing and packing industries and there is already an established pattern of gangmaster operations, many of which are highly reputable, serving a need of the agricultural economy.
 Nevertheless, a number of gangmasters operate in a completely unscrupulous and inhumane way. I know that the hon. Member for Strathkelvin and Bearsden (Mr. Lyons) is extremely concerned about the issue, as is the hon. Member for West Renfrewshire (Jim Sheridan). We have seen a series of examples where completely unscrupulous gangmasters have been employing people—

George Stevenson: Order. I have listened to the hon. Gentleman with great interest. Having looked at the words in the Bill and in the explanatory memorandum, I think that the rights referred to are those conferred as a result of an Act or European legislation. The problem that I have with his point about gangmasters is that I believe that there is no legislation for the Minister to enact on that. Perhaps the hon. Gentleman will bear that in mind.

Henry Bellingham: I will certainly bear it in mind, but I did hope that you would look sympathetically on what I was saying, Mr. Stevenson, because there is a private Member's Bill before Parliament. Although we are not allowed to anticipate legislation—

George Stevenson: Order. The hon. Gentleman and I are on common ground and I am trying to be as helpful as I can. However, he will appreciate the confines within which the debate must take place.

Henry Bellingham: Indeed, Mr. Stevenson. In that case, I ask the Minister how he sees the clause interacting with the status of gangmasters. I think that that would be a legitimate question to ask because, as we know, there is no legislation that specifically regulates gangmasters. On the other hand, there is legislation providing rights to employees. I would like to ask the Minister if, in the absence of legislation regulating gangmasters, there is anything more that we can do to support and to uphold the rights of those employees.

Jim Sheridan: On a point of clarity, the hon. Member for North-West Norfolk mentioned that my hon. Friend the Member for Strathkelvin and Bearsden has an interest in the gangmasters Bill. Perhaps he does, but my own interest is far more important as the Bill stands in my name. Legislation should go further than regulating gangmasters. It is important that poor and vulnerable people are protected.
 When we see the disastrous consequences of not having the legislation that I am proposing, such as the deaths of those unfortunate people in Morecambe, it concentrates the mind and demonstrates why we need legislation to protect not only vulnerable workers who work for gangmasters, but workers in all areas of the service sector. 
 When we discuss vulnerable workers, I am reminded of the situation in which I found myself when representing a security guard whose colleague had failed to turn up. He had already worked a 12-hour-shift and his employer told him to work another 12-hour-shift or face the sack. Lo and behold, the Royal Society for the Prevention of Cruelty to Animals turned up and took the dog away because they would not allow it to work another 12 hours.

George Stevenson: Order. We are a great partnership in this Committee and I am thoroughly enjoying myself, but I need to remind the Committee that we are discussing conferring rights after an Act or European legislation. We cannot discuss legislation that we would like the Government to introduce, we cannot anticipate private Member's Bills and, as much as we would like to, we cannot have a debate on that basis. Perhaps the hon. Gentleman would bear that advice in mind.

Jim Sheridan: I apologise, Mr. Stevenson, if I strayed. I stand secure under your chairmanship.
 I welcome the clause, which enables the Secretary of State to extend employment rights to those who desperately need them. We call on the Government to implement as swiftly as possible legislation that provides protection for the vulnerable, regardless of their status. I ask the Minister to take my remarks seriously.

Jon Cruddas: The clause gives the Secretary of State powers to extend the coverage of existing employment rights to categories of workers currently unprotected. Department of Trade and Industry research suggests that up to a third of the UK work force have ambiguous employment status under current law. The Government have instigated a review of employment status, but we have not seen publication of the conclusions. If the Minister can tell us where they are, that will inform all participants in the discussion.

Jonathan Djanogly: Having heard the interesting debate, I am slightly confused about what the clause applies to. I hope that the Minister will say the sorts of individual to whom it refers and the rights that they could receive.
 My concern is that the clause will remove the necessity for orders to be brought in by statute and will enable them to be shuffled in through the back door via the Secretary of State. For instance, clause 30 deals with flexible workers. That is fine—the order is to come in by statute. We may or may not agree with it, but it is being introduced in the proper way. My concern is that the clause would enable important issues relating to workers' rights to be changed without full consultation or debate.

Gerry Sutcliffe: I recognise your difficulty, Mr. Stevenson, and that of the Committee in getting to grips with this issue because the conclusions from the employment status review are still outstanding. I acknowledge that that has caused hon. Members difficulty in speaking to the clause. I am grateful to the hon. Member for North-West Norfolk for saying that it is a technical measure. However, issues flow from it and I shall try to address those within the confines of the clause.
 The clause makes a technical amendment to section 23 of the Employment Relations Act 1999 to improve and to simplify the way in which employment rights may be conferred on individuals. I stress that the clause itself does not confer any rights on individuals, nor can new rights be created via section 23. The clause enables us only to confer rights contained in specified legislation on individuals who do not have such rights. 
 The clause enables the Government to confer rights on a given group of individuals by means of an order that does not amend the legislation that originally conferred the rights. It will be a better method where the group is only small. Amendments to the legislation to confer the right may be complicated. In that case, conferring the right in a separate order will be helpful to both employers and workers, who will be able to check the additional coverage of the right and see how it works simply by looking at the section 23 order. The Government would not use the power in section 23 to confer rights on a group of workers without full prior consultation, the point made by the hon. Member for Huntingdon. He is right about the provision not coming back to the House, but not about consultation on the proposal.

Jonathan Djanogly: Can the Minister give an example of a small group of workers who would have benefited from being included in such a way, but who will presumably benefit later from full legislation?

Gerry Sutcliffe: Agency workers would benefit from that right, and perhaps a group of workers that I shall come to later.
 The employment status review has taken some time, because there were over 400 responses to it from many diverse groups with many diverse views about employment status. I hope that, by the summer, we will be able to make the findings public. However, as there has recently been discussion about the role of the clergy in the context of section 23 and the Bill, it may be helpful if I go into greater detail. 
 As the Committee will be aware, the Government have been considering the position of the clergy for some time. Given the many diverse traditions, it is clearly a complex issue. Those whom we may, for simplicity, term ''the clergy'' exist in different faiths and organisations and have different concerns. The frameworks of employment protection and employment relationships between clergy and different faith organisations vary considerably. Not surprisingly, therefore, we have received 
 representations arguing, with some vehemence, both for and against the introduction of legislation to extend employment rights to the clergy. 
 The Government respect the diversity of religious traditions and practices in the UK today. We are anxious to ensure that any action that we take takes account of the complexity and sensitivity of some of the issues that respondents to our consultation have raised. That said, we also want to ensure that that complexity and sensitivity do not result in no action being taken. 
 I have been encouraged in recent weeks by indications that the Churches take this issue seriously. The Church of England's own internal review is a positive development. It recommends that the clergy has rights accorded by the Church that would be enforceable at employment tribunals. I hope that the spotlight placed on these issues by the consultation and by the interventions of many hon. Members will encourage many Churches to give the issues the attention that they deserve. 
 In the hope that we can make further progress along those lines and encourage the Churches to take action themselves, I am pleased to announce today that I intend to launch a working group to facilitate and to encourage action in relation to employment protections for the clergy. We will seek to involve not just the Church of England, which has set such an encouraging example, but other Christian denominations and faiths. We are in the process of issuing invitations to a wide range of interested parties, and I look forward to engaging in positive discussions that will lead to members of the clergy feeling more secure and enjoying greater employment protection. If any hon. Members wish to participate or know of any groups that could helpfully contribute to the discussions, our invitation to participate is open to all. 
 My main concern in taking that step is that the working group should result in progress. That is the Government's main priority. We have powers to extend employment rights to the clergy by law but I hope that, through dialogue with the Churches, we can achieve real progress, despite the sensitivities. I hope for a win-win outcome that respects individual religious traditions and individual clergy's legitimate concerns. 
 On the question of gangmasters, there is an important distinction between their activities and agency workers and the agency workers inspectorate, and I hope that the Bill introduced by my hon. Friend the Member for West Renfrewshire will clarify that relationship. Clearly, the Government support the objectives of that Bill, not least because of the weekend's tragic circumstances. The hon. Member for North-West Norfolk has been heavily involved in his constituency and area with issues relating to gangmasters. Legitimate concerns exist about those who do not operate in the right environment and who act in a criminal way. 
 We have included this technical clause in the Bill to have a power. I hope that, when the employment status review is published, we can go into greater detail about the groups of workers that will be covered. I commend the clause to the Committee.

Henry Bellingham: Will the Minister clarify a couple of points? Who will be on the working group looking into the clergy? Will it be an interdepartmental group? Will senior members of the clergy be involved in it or, for example, any bishops from the other place? As the Minister says, the aim is to seek greater security and protection, and he wants as many hon. Members to participate as possible. How will he advise hon. Members to go about that participation? I should be grateful if he could add some details to what he has said.

Gerry Sutcliffe: I shall be happy to do that. Clearly, there are well held views on all sides of the argument. The Bill gives the Government the power to put their view into law. I think that that would be wrong; I want to get the maximum number of people involved. The invitation is open to as wide a range and as many Churches as possible. It will be for those Churches and faiths to determine which individuals will represent them on the working group. I will not limit the number of members. The issue has been raised with me at Question Time on numerous occasions by hon. Members on both sides of the House, and has been discussed in the other place.
 However, the working group will not be open-ended. We have to come to a conclusion. There are many issues, and there is much suffering when it comes to the way in which some of the faiths treat individuals. Those individuals need to have protection and rights. The Church of England has taken a positive step with its report, and I am pleased about that. 
 The answer to the hon. Gentleman's question is that it will be up to the faiths and the Churches to determine who the individuals are. The Government will consider who has an interest in the matter, and I am sure that if he wants to be involved in the working group, he can be. 
 Question put and agreed to. 
 Clause 29 ordered to stand part of the Bill.

Clause 30 - Flexible working

Henry Bellingham: I beg to move amendment No. 54, in
clause 30, page 26, line 32, leave out subsection (4).
 The clause is important because it is about extending rights to flexible workers. Subsection (4) allows an exemption to the one-year qualifying period of continuous employment for claims for unfair dismissal. Will the Minister clarify something? In the review of the Employment Relations Act 1999—a consultative process was obviously ongoing—what sort of representations did he receive from trade 
 unions and other bodies pushing for a shortening of the period of qualification? I had a look at the review paper and could see no mention of substantial representations to have the period shortened.

Gerry Sutcliffe: It may help the hon. Gentleman in the course of his argument if I say that the trade union side wanted to reduce the qualifying period from 12 months. Clearly, there was resistance to that from employers. There are issues surrounding other rights that individuals get, in relation to which the period of 52 weeks does not come into play.

Henry Bellingham: I am grateful to the Minister for clarifying that point and explaining that there was a submission by the trade unions, because, in the documents that I looked at, there was not much mention of that. Will he tell us which trade unions were responsible for the submissions and the essence of their argument?
 I am concerned about another point. Subsection (4) adds section 104C of the Employment Rights Act 1996 to the list. To qualify for the right to request flexible working, an employee need only have 26 weeks of continuous employment. I am not clear whether the right to flexible contracts comes into this at all. The Government have recently given employees the right to flexible working, or is that a totally separate matter? If it is a separate matter, are the Government saying that they are going to reduce the one-year qualifying period for flexible workers to 26 weeks simply because they feel that those flexible employees deserve more rights? If that is the case, I submit that it is not necessarily fair on many small and medium-sized enterprises and will lead to a greater burden on them. 
 That point has been debated on several occasions in this Committee. Conservative Members generally support much of what is in the Bill, but every now and again one comes across a provision that will make life more difficult for SMEs. Are employees pushing hard to have flexible working rights extended? Do they expect such rights to come into play after only 26 weeks? Employees have known for a long time that after one year they collect the full array of rights; that is something that we all support. Unless the Minister can convince me otherwise, it appears that changing the period to 26 weeks is not being introduced on the basis of substantial representation. I would like to know exactly which trade unions have been involved and exactly how the consultation took place. 
 The clause proposes a substantial extension of rights. We support the bulk of the clause, but we are not happy with subsection (4). That is why we tabled the amendment. We are concerned about extra burdens being put on SMEs, which the clause undoubtedly will do. There will be extra stress and strain for a substantial number of companies if rights are claimed in cases of a breakdown in relations between the employer and the employee. That is the essence of the amendment.

Jonathan Djanogly: The Minister said that I had been consistent in my approach. He will have no less from me on this amendment.

Gerry Sutcliffe: So no surprises?

Jonathan Djanogly: As he says, he will not be surprised.
 This is another clause that increases the burden of regulation on business. In this case, the qualifying period of one year's continuous employment is reduced to 26 weeks for making an unfair dismissal claim in respect of the right to request flexible working. That must be put in the context of what has happened with unfair dismissal. The Government have reduced the two-year qualifying period to one year, increased the maximum award available and included part-time workers. They are now stretching unfair dismissal to requests for flexible work. The changes have been introduced through separate legislation, one by one, and the ratchet is turned again in this case. It raises the question of what is next in line for unfair dismissal. One has the feeling that this is not the end of the matter.

Anne Picking: The picture that the hon. Gentleman paints once again is that everything is stacked against the employer. The clause is about giving an employee a basic right to defend a case if they feel that they have been unfairly dismissed. The employer has the same right to defend their case. My view is that employees should have that right from day one, not after one year.

Jonathan Djanogly: The hon. Lady makes her point. Ultimately, the question comes down to what is unfair. It must be put in the context of what is fair in respect of managers being able to manage their businesses. That is a political argument on which, clearly, we have differing views.
 I am not entirely sure why the requirement on flexible working applications has been introduced. That was referred to by my hon. Friend the Member for North-West Norfolk. What is actually behind it? If the Minister could elaborate on that, it would be of interest to the Committee. Are the Government trying to encourage flexible working as a policy objective? If so, how do they believe that that will be the outcome if employers are simply forced to recognise it? I do not see one leading to the other. 
 Why should workers who request flexible working be given more rights than full-time workers? That does not seem to follow either; it would be prejudicial to full-time workers. It seems to point towards the fact that, next year, full-time workers will have 26 weeks in the unfair dismissal process, rather than one year. That is a matter for next year, but in the mean time, I would be grateful if the Minister addressed those issues.

Bill Tynan: I welcome the measures in the clause because they strengthen the provisions relating to unfair dismissal for those who take advantage of their statutory right to flexible working. The existing legislation contains a number of limitations on those wishing to enforce their rights and the changes would reduce that number.
 I believe in fairness, justice and the opportunity for protection where possible. I remember when the two-year industrial tribunal qualification was introduced. Some employers took the opportunity to employ people for two years and pay them off a week before the two years were up in order to rehire them on a new contract. That was completely unfair. I would be interested to know whether the clause will remove the upper-age limit for flexible working. Does it reduce the qualifying period—I hope it does—to 26 weeks for flexible working, and does it provide protection in cases of redundancy and industrial action?

Gerry Sutcliffe: This has been a useful debate and shows the difference between the Government's approach and that of the Conservatives. There has been a failure to understand what we are trying to achieve in the clause. Hon. Members will know that, last April, the Government introduced a new law giving working parents with children under the age of six, and parents with disabled children under the age of 18, the right to request flexible working and placed a duty on employers to consider such requests seriously.
 Subsection (4) addresses an omission in the original drafting of the law. It delivers the policy intention of the Government and the work and parents taskforce that designed the law. Small businesses also saw the business case for the provision. 
 Subsection (4) adds the flexible working law to the list contained in section 108(3) of the Employment Rights Act 1996 detailing exemptions to the requirement of one year's qualifying service before bringing a claim for unfair dismissal. The addition is appropriate, because the eligibility criteria for the flexible working law refer to 26 weeks' continuous service, not 52. That approach is consistent with other employment laws where the qualifying period is less than 52 weeks, such as those dealing with maternity and paternity leave. 
 If we did not add flexible working to the exemption list, as suggested in the Opposition's amendment, a proportion of parents would be exercising their statutory right without full protection from unfair dismissal—a point raised by my hon. Friend the Member for East Lothian (Anne Picking). Without the protection provided by the subsection, employees who have qualifying service of more than 26 weeks, but less than one year can face dismissal on account of the likelihood of their making an application, as well as their making the request. That goes against the original intention of the legislation, and it would not deliver the recommendations of the work and parents taskforce that we should give employees greater confidence to make requests and engage in dialogue to find an outcome suitable for both employer and employee. 
 I fully recognise that most employers know the benefits of flexible working and pursue policies that value their staff, thus maximising the potential of their organisation. However, if we do not address the issue through legislation there is scope for a loophole to be exploited. We have a duty to ensure that employees 
 who are eligible for a statutory right are able to exercise such a right in the knowledge that they cannot be dismissed unfairly. 
 The approach of Opposition Members suggests that there is a hidden agenda in the Bill to reduce the 52-week qualifying period. During the consultation process, trade unions—particularly through the Trades Union Congress—pushed for day-one rights. Some hon. Friends stated that they agreed with that. The Government do not see it as being appropriate at this stage. There are already provisions for a lesser period than 52 weeks in certain cases, such as maternity and paternity leave. We think that it is only fair, in this case, where an employee has been unfairly dismissed, that they have the right to a 26-week qualifying period. It is appropriate in this case. 
 The whole issue around flexible working and work-life balance reflects the changing nature of the work force today. I was happy, a few weeks ago, to present the parents at work awards, where employers were rewarded for enabling flexible working among their employees. Every employer who came to the podium to accept an award said that they could make a business case for flexible working, which values employees and retains the skills that businesses need. Opposition Members see things through different coloured spectacles from the rest of us, in terms of how modern employment relations needs to move forward. This amendment is entirely inappropriate and I hope that the hon. Member for North-West Norfolk will withdraw it.

Henry Bellingham: I agree with what the Minister said about the work-life balance agenda, although we take issue with him on parts of it. There is no question but that the vast majority of good businesses will do their level best to ensure that they get the most out of their employees, and that it is a genuine partnership. No business can succeed unless it is a partnership. Ensuring that employees are happy, and that everything about their commitment to that company is as harmonious as possible, will result in them making
 a bigger commitment to that company in terms of the work that they do. We agree with the Minister on that. I applaud him for attending the awards ceremony, and I hope that he will attend many more such ceremonies.
 There are a couple of points on which I seek further clarification. Regarding section 104C of the Employment Rights Act, I could not find the section in the original statute. Will the Minister tell us which subsequent legislation added that section? He addressed my point about the new legislation regarding the right to flexible contracts. Is he saying that the legislation we now have giving certain employees the right to request flexible contracts has resulted in the reduction in the one-year qualifying period? If that is the case, I would be slightly more sympathetic, and if he can confirm that I would seek the Committee's leave to withdraw the amendment.

Gerry Sutcliffe: I reassure the hon. Gentleman that this is the case. That is why the 26 weeks provision is there. It is the right to ask for flexible working—the employer retains the right to refuse that request if it is, in his view, detrimental to the business. It is about trying to ensure that there is a satisfactory joint arrangement whereby both employer and employee benefit. The section that he quoted is from the Employment Act 2002.
 I forgot to answer the point raised by my hon. Friend the Member for Hamilton, South (Mr. Tynan). Subsection (5) ensures that there is no upper age limit preventing unfair dismissal claims based on flexible working. With that, I ask the hon. Member for North-West Norfolk to withdraw his amendment.

Henry Bellingham: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 30 ordered to stand part of the Bill. 
Further consideration adjourned.—[Charlotte Atkins.] 
 Adjourned accordingly at twenty-one minutes to Eleven o'clock till Tuesday 24 February at half-past Nine o'clock.